Specific Measures of Protection

466. Customary Burials. There were several contexts in which Aboriginal people sought recognition of their customary laws relating to Aboriginal remains and burials. For example the Cemeteries Act (NT) s 21 imposes penalties for burials outside cemeteries without the written permission of the Minister.[31] The Act deals with cremations and burials, and it appears to outlaw Aboriginal mortuary practices in Central Australia. Consideration should be given to amending the Cemeteries Act (NT) s 21 and similar legislation to allow for burials in accordance with Aboriginal customary laws, particularly in relation to burials on Aboriginal land, but possibly elsewhere also (for example on pastoral land), provided relevant permissions are obtained. Another matter relating to the return of Aboriginal skeletal remains to Aboriginal people[32] has at least been addressed, if not resolved, by provisions of the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth). Section 20 of this Act provides that a person who discovers Aboriginal remains shall advise the Minister for Aboriginal Affairs who shall then take reasonable steps to consult with any Aborigines he considers may have an interest in the remains with a view to determining appropriate action to be taken. Where Aboriginal remains are delivered to the Minister he is required to return them to Aborigines entitled and willing to accept custody and control of the remains in accordance with Aboriginal customary laws, or otherwise deal with them according to reasonable directions from Aborigines so entitled. If there are no Aborigines so entitled the Minister is to transfer the remains to the prescribed authority. In the case of Aboriginal remains that are themselves significant Aboriginal objects (objects of particular significance to Aborigines in accordance with Aboriginal tradition) declarations can be obtained from the Minister, including a declaration ordering the delivery of the remains to the Minister or to Aborigines entitled to the remains in accordance with Aboriginal tradition (s 12, 21).[33]

467. Sacred Sites and Relics. It has been found necessary to enact special legislative measures to incorporate Aboriginal customary laws relating to the protection of sacred sites and relics. These were referred to in Part I of this Report.[34] Legislation in force in Queensland and South Australia protecting relics provides that it does not prejudice the rights of ownership of any Aboriginal tribe or member of an Aboriginal tribe in relics used or held for use for tribal purposes. Such provisions appear to acknowledge that customary rights to ownership in relics exist.[35] Legislation in other States provides that the relics shall be the property of the Crown.[36] Difficulties with sacred sites and relics have to some extent been addressed by the Aboriginal and Torres Strait Island Heritage (Interim Protection) Act 1984 (Cth) which aims to protect and preserve areas and objects in Australia and Australian waters that are of particular significance to Aborigines in accordance with Aboriginal tradition (s 4). The Minister has the power to make a declaration in relation to any object that is a significant Aboriginal object or one of a class of significant Aboriginal objects and that is under threat of injury or desecration. Significant Aboriginal objects are defined as those objects of particular significance to Aboriginals in accordance with Aboriginal tradition (s 3). These provisions of the Act have, for example been used as a basis for injunctions forcing the withdrawal of Aboriginal artefacts from sale at auction.[37] Resort can sometimes be made to customs regulations, which provide that no Aboriginal archaeological and anthropological material may be exported from Australia without the written consent of the Minister for Customs.[38] However the customs regulations are regarded by many Aborigines as inadequate, in that there is no provision for Aboriginal involvement in decisions to refuse an export permit.

468. Private or Secret Matters. A further area in which Aboriginal people have sought protection of their customary laws by the general law related to dealings with certain restricted information otherwise than in accordance with Aboriginal customary laws. Material regarded as highly secret, acceding to Aboriginal customary laws, is generally only known to particular persons. Disclosure may threaten the fabric of Aboriginal society structured around who holds such information.[39] Thus Aboriginal people have sought the support of the general law to prevent the publication of aspects of Aboriginal secret matters, the filming of Aboriginal dance, or the recording of Aboriginal songs. It is possible to deal with these matters to a limited extent under common law powers. For example an injunction was obtained restraining the Centralian Advocate from publishing certain information about Aboriginal customary laws.[40] Injunctions have also been granted forbidding the publication of photos depicting persons, places and ceremonies and secrets of a religious nature[41] and orders have been made for delivery of slides to the Prothonotary and restraining their sale.[42] In some circumstances an action for breach of confidence may be available to protect secret material, eg entrusted to an anthropologist.[43] The problem of preventing revelations of secret matters during legal proceedings is discussed in Chapter 25. Common law remedies provide some protection, but clearly cannot cover all situations where revealing information may itself be a breach of customary laws.[44]

469. The Sale of Aboriginal Artefacts. In recent times there have been a growing number of objections to the sale of Aboriginal paintings and objects particularly to overseas buyers. The sale and gift of such objects, have caused problems which have come before the criminal courts.[45] Much Aboriginal artwork involves the depiction of mythical beings and totemic figures which may have particular significance either to the individual artist or to other members of the artist’s group. A person or a number of persons may have custodial rights or obligations under Aboriginal customary laws over figures which appear in paintings, and which have only been ‘loaned’ to the artist. According to Berndt and Berndt:

Sacred boards may be personally owned, and so may the valuable feathered string ropes and feather-tasselled spirit dilly bags of eastern Arnhem land; but most sacred emblems, songs and dances even though made or performed by particular persons, are owned by the local group or clan as the case may be. There are cases of the selling of clan designs as in eastern Arnhem Land, in the sense of handing over the sole rights to their reproduction, but this is rare.[46]

Provisions of the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth), referred to above, may not assist where the paintings are not themselves significant objects. State Aboriginal relics legislation does not generally extend to the sale of artefacts or the unauthorised use of designs.[47] One question to be considered is whether a form of intellectual property should be recognised either in the items, or in the symbols depicted. It has been argued that, because paintings, artefacts and even songs belong to the group or a section of the group, rather than to the individual artist, there should be a form of community copyright rather than individual copyright. It might be considered wrong that a person should gain economic or other benefits from using certain figures, designs or emblems which according to customary law ‘belong’ to someone else. The issue could arise, for example, if certain tribal designs were mass produced on souvenirs (eg tea towels or T-shirts). If these tribal designs were based on an Aboriginal painting which was the original work of an Aboriginal artist, copyright (if it exists at all[48]) would reside in the particular artist. However there is no place in the present law of copyright for collective ownership. In fact the protection of traditional designs is difficult to reconcile with the law relating to intellectual property, which grants a short-term monopoly to the artist on the condition that the design or idea will eventually be available in the public domain. Some Aboriginal communities would be likely to object to certain designs ever becoming public property. Clearly, there are important issues at stake here, but the law of intellectual properly provides only limited protection.

470. Further Measures of Protection. The law of unfair competition, copyright and confidentiality can provide some limited protection for distinctive Aboriginal artwork and designs. The common law can also provide some protection of secret matters generally. But each case will depend on its own facts. These aspects of Aboriginal culture are not protected by the Aboriginal and Torres Strait Island Heritage (Interim Protection) Act (Cth) 1984, which is limited to the protection of particular sites and objects, nor by State Aboriginal relics legislation, which does not generally extend to Aboriginal paintings and artefacts produced for sale, nor to secret matters generally. This is an area where specific protective measures should be provided by the general law.[49] Protection of the indigenous and national cultural heritage is increasingly an issue at the international level.[50] In particular, Australia is currently giving consideration to the ratification of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970.[51] The Commonwealth is also considering the implementation of the recommendations of a Working Party under the chairmanship of the Department of Home Affairs on the protection of Aboriginal Folklore. The Working Party identified three abuses to be controlled. These are, first, the use of sacred secret material other than in accordance with custom, secondly, the mutilation, destruction debasement or export of items of folklore, and thirdly, the use of items of folklore for commercial gain without payment of remuneration to traditional owners.[52] As has already been indicated, these matters are not covered in this Report.[53] However the Commission endorses the need for special legislative protection in these areas. Such special legislative measures, together with careful use of the general law, and greater use of existing by-law powers,[54] offer greater assistance to Aboriginal people than the enactment of a broad range of customary, offences as part of the general body of the criminal law.

[31]N Andrews, Submission 390 (31 October 1983).

[32]The remains of Truganini (supposedly the ‘last’ Tasmanian Aborigine) who died in 1876 were on public display in the Tasmanian Museum from 1904 to 1947. In 1976 after much controversy the skeleton was cremated and the ashes scattered in D’Entrecastesux Channel by representatives of the Tasmanian Aboriginal community: Tasmanian Museum Act 1976 (Tas). More recently the Crowther collection was returned to the Aboriginal Community in Tasmania, pursuant to provisions of the Museums (Aboriginal Remains) Act 1984 (Tas). Steps have also been taken to recover the remains of Tasmanian Aborigines held by museums and universities in other countries. See further C Fulton, ‘Tassie’ (1985) 16 ALB 5; M Mansell, ‘The Bodysnatchers’ (1985) 17 ALB 10.

[33]Aboriginal remains do not include bodies buried in accordance with State or Territory law or buried on land that is in accordance with Aboriginal tradition used or recognised as a burial ground. Nor does it include the remains of a body to be dealt with in accordance with State or Territory law relating to medical treatment or post mortem examinations, though this has caused some concern: see J Bucknall, Transcript Strelley 24 March 1981) 422-3. Nor does it include any objects made from human hair or other bodily material that are not readily recognised as being bodily material (s3). Various submissions called for the protection of Aboriginal burial grounds: eg G Blitner, Submission 92 (25 August 1978) 13. See para 468. For a comparative account see LV Prott & PJ O’Keefe, Law and the Cultural Heritage, vol 1 Discovery and Excavation, Professional Books, Abingdon, 1984, 136-42.

[34]See para 77, 78.

[35]Aboriginal Relics Preservation Act 1967 (Qld) s 4, Aboriginal and Historical Relics Preservation Act 1965 (SA) s 4.

[36]eg Archaeological and Aboriginal Relics Preservation Act 1973 (Vic) s 20.

[37]Sydney Morning Herald, Editorial, 22 June 1985; Sydney Morning Herald, 19 June 1985.

[38]Item 2, second schedule, Customs (Prohibited Exports) Regulations made pursuant to Customs Act 1901 (Cth) s 112.

[39]See B Keon-Cohen, Submission 389 (17 October 1983); G Neate, Submission 373 (9 April 1983).

[40]Nationwide Publishing Ltd v Furber, Full Federal Court, unreported, 13 April 1984. See further P Ditton, Central Australian Aboriginal Legal Aid Service, Submission 395 (10 January 1984).

[41]In Foster v Mountford & Rigby Limited (1976) 14 ALR 71 an interim injunction was granted against the publication in the Northern Territory of a book containing information about secret religious ceremonies, on the basis that publication would or might involve a breach of confidence.

[42]Pitjanyatjara Council Inc & Nganingu v Lowe & Bender (1982) 4 ALB 11. In that case the Pitjantjatjara Council was in possession of a number of slides taken by Mountford which contained secret or sacred material, publication of which would be an offence to Pitjantjatjara people.

[43]Foster v Mountford & Rigby Limited (1976) 14 ALR 71, 73. Another possibility is the purchase by the Commonwealth of the offending slides and photographs on behalf of Aboriginal groups. See further C Tatz, Submission 146 (3 September 1979); M de Graaf, Submission 102 (27 October 1978).

[44]See para 657-665.

[45]R v Skinny Jack & Ors, SA Supreme Court, unreported (13 July 1964), where the victim sold sacred objects, contrary to customary law, and was some years later killed by members of the tribe. See further E Eggleston, Fear, Favour or Affection, ANU Press, Canberra, 1976, 289-292. In R v Craigie and Patten, NSW District Court (No 1201 of 1979) the defendants were charged with stealing Aboriginal paintings. One reason put forward for the taking of the paintings was to prevent their sale out of Australia (by way of bona fide claim of right). They claimed the paintings were owned by all Aboriginal people and therefore it was not an offence to take the paintings away. They were acquitted by a jury. See para 435.

[46]RM Berndt & CH Berndt, The World of the First Australians, 4th rev edn, Rigby, Adelaide, 1985, 134.

[47]For example the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) s 2 defines a ‘relic’ as not including a handiwork made for the purposes of sale.

[48]It is possible that some paintings might not be regarded as original works. The emblems and designs may have existed in the tribe for thousands of years, and the work of an artist could be regarded as an unoriginal copy.

[49]In addition, the general law should not prohibit the carrying on of Aboriginal ceremonies or other ritual activities in accordance with Aboriginal tradition unless there is good reason to do so, and the prohibition is of general application. The Sex Discrimination Act 1984 (Cth) may prohibit ceremonies or other activities restricted under Aboriginal tradition to members of one sex, it provides no equivalent exemption to s 37 (‘Religious bodies’) in respect of these matters. An exemption should be enacted, as recommended in para 656.

[50]See M Bedjaoui, Special Rapporteur, ‘Eleventh Report on Succession of States in respect of matters other than Treaties’, United Nations International Law Commission Yearbook 1979 Vol II Pt 1, 78-82 for an account of international developments in this field.

[51]823 UNTS 231.

[52]Working Party on the Protection of Aboriginal Folklore, Report. Department of Home Affairs and Environment, Canberra, 4 December 1981. See R Bell, ‘Protection of Aboriginal Folklore’ (1985) 17 ALB 6.

[53]See para 211, 213.

[54]Discussed at para 809-11.